Jonathan Pollard’s First Freedom Gambit

Attorneys filed a petition asking President Barack Obama to commute Jonathan Pollard’s life sentence. The petition argues that Pollard, a civilian U.S. Navy analyst who pled guilty to spying for Israel in 1986, received a sentence greater than "many others who were found guilty of similar activity on behalf of nations adversarial to us, unlike Israel." Four Democratic members of Congress are circulating a letter in Congress supporting clemency. Former assistant secretary of Defense Lawrence Korb is also calling for Pollard’s release, arguing that initial damage assessments of Pollard’s espionage performed by his boss, former Secretary of Defense Caspar Weinberger, were overblown.

Would clemency result in a renewed surge of Israeli espionage against US national security and commercial targets that was cresting when Pollard was arrested? Would it exonerate the many others who were never properly investigated or prosecuted for spying for Israel? Leading indicators are not encouraging. The FBI’s latest reverse sting operation recently netted an Akamai employee eager to sell corporate secrets to the Mossad in exchange for cash and perhaps knocking off his estranged wife overseas. Stuart Nozette awaits trial. The apparent ease with which the FBI still rounds up copycat spies imbued with Pollard’s patriotism toward a foreign country and lust for easy cash seems to follow the Michael Scheuer dictum that "Israel’s intelligence services have found a seemingly unending number of recruits who …have decided that Israel’s — not America’s — advancement is paramount and justifies criminal and/or treasonous behavior."

Ironically, the latest drive to gain leniency for Pollard may backfire. In February, 1987 Pollard filed his own motion [pdf] seeking "documents relating to the detention and disposition of persons suspected of conducting espionage activities on behalf of the Government of Israel." He attached press clippings of other instances of the US government detaining accused Israeli spies or uncovering illicit transfers of classified information that did not result in prosecution. Pollard’s defense brashly stated "it was the established policy of the Department of Justice not to prosecute U.S. citizens for espionage activities on behalf of Israel."

The government prosecutors were incensed, characterizing Pollard’s bid as a "fishing expedition through the government’s files." In a blistering February 17th opposition, prosecutors carefully worded a response "[Justice Department] Internal Security Section officials are aware of no prior instances in which a U.S. citizen suspected by law enforcement authorities of espionage activities on behalf of Israel has been detained and released. Second, criminal prosecution has never been declined by the Department of Justice in cases wherein reliable and admissible evidence had been obtained by law enforcement officers of the systematic, clandestine provision of U.S. classified information by an American citizen acting on behalf of Israel. Third, Internal Security Section officials are unaware of any prior instance of espionage committed by a U.S. citizen on behalf of Israel in exchange for money. In view of the foregoing, defendant’s suggestion ‘that it was the established policy of the Department of Justice not to prosecute U.S. citizens for espionage activities on behalf of Israel.’"

The passage of time and declassification of tightly held FBI, DOJ, and other files reveal Pollard was right to believe in the existence of a two-track system for handling Israeli espionage in the US, but his request for government documents was written much too narrowly. What if Pollard had asked for instances of Israeli intelligence providing classified US information to American agents in order to win special concessions? Or instances where US espionage suspects were never even properly detained in the first place? Unfortunately for Pollard, he functioned on a lower "cash and carry" level that inspired only contempt from the DOJ and upper espionage tier. Even his ultimate handler, spymaster Rafi Eitan dismissed Pollard for this, saying "If I had been at the [Israeli] Embassy when Pollard came to seek asylum, I would have put a bullet through his head and there would have been no Pollard affair.’"

Eitan probably never dreamed of "putting a bullet through" the head of the NUMEC nuclear materials facility president Zalman Shapiro. On Sept. 10, 1968, four Israelis visited the Nuclear Materials and Equipment Company, a nuclear reprocessing facility in Pennsylvania; to "discuss thermoelectric devices with Shapiro," according to correspondence seeking official AEC consent for the visit from NUMEC’s security manager. Among the approved visitors was Rafi Eitan, later confirmed by various CIA and FBI sources to have stolen enough US highly enriched uranium from NUMEC in the 1960’s for Israel to quickly manufacture up to ten atomic weapons.

If the Justice Department had given Pollard the secret 1978 classified GAO report on NUMEC nuclear diversion (released in 2010), Pollard could have made a strong case that the US indeed had an established policy for non-prosecution of Israeli spies and their US agents for major — but intensely embarrassing — covert operations. Indeed, the final conclusion of the GAO study was that the non-prosecution of Shapiro was the direct result of law enforcement agencies being denied resources and authorization to conduct warranted, credible investigations. But the DOJ didn’t respond to Pollard’s narrow request for files. Pollard’s handler Rafi Eitan who made his career plundering the United States under Israel’s LAKAM industrial espionage unit — has since put Pollard’s crimes in more proper perspective. Eitan’s frank testimony [pdf] to investigative journalist Gordon Thomas reveals how Israeli espionage truly functions on the "upper tier," where the crimes and financial rewards are bigger, more complex, and intertwined in US politics and government.

In 1983 Eitan personally visited the offices of software maker INSLAW under an assumed name to evaluate a powerful proprietary case management software application called "PROMIS." Soon, Israeli-modified pirate versions of the software with back door access to its intelligence agency were sold to governments around the world without ever making due royalty payments to the US software maker. Eitan claims the theft of PROMIS — not Pollard — was his single greatest achievement. Eitan’s network of white glove agents and partners who walked free contrast with Pollard’s predicament — but not his core belief that crimes in the name of Israel should never be punished. They — like Eitan — have contempt for Pollard because he was caught and prosecuted. One of Pollard’s loudest critics and opponents to clemency over the years has been former AIPAC lobbyist Douglas M. Bloomfield. But Bloomfield’s real motives for excoriating Pollard in his ubiquitous columns may have less to do with defending Israel’s US lobby than protecting himself.

On January 14, 1987, just as Pollard was angling for a lighter sentence the US Department of Justice was closing [pdf] exactly the type of investigation Pollard sought to use in his own defense — but the FBI and DOJ kept the files classified until 2009. The files reveal the funneling of sensitive and classified industrial information from an American spy to Israeli Minister of Economics Dan Halpern. Halpern then passed the classified information to AIPAC, which used it to push a highly unfavorable preferential trade deal over the broad opposition of US industry and worker groups. When the US Trade Representative and FBI caught AIPAC red-handed and ordered the return of the classified industrial document, Douglas Bloomfield made an illicit copy before sending it back to USTR by courier. The Justice Department grudgingly let the FBI put more resources on the AIPAC commercial espionage case the month Pollard’s espionage was discovered. When Jonathan Pollard was arrested, he was specifically questioned about Bloomfield, who law enforcement identified as a "security risk." But unlike Pollard, Bloomfield and the AIPAC research team were free to move on to future run-ins with law enforcement over classified information.

There is little doubt that Pollard, with the aid of the NUMEC diversion, PROMIS piracy and AIPAC commercial espionage files, could have made a solid case "that it was the established policy of the Department of Justice not to prosecute U.S. citizens for espionage activities on behalf of Israel" through its preferred means — stunted or quashed investigations. The US Department of Justice clearly failed America by rejecting Pollard’s appeal for government case files and the due process it deserved. But there were other concerns — it was Justice Department official C. Madison Brewer who sent Eitan to INSLAW in the first place, touching off years of software piracy, litigation, and congressional investigations into millions in lost software royalties. DOJ and other government employees, just like Eitan, were pirating [pdf] INSLAW software to profitably spy on US allies through proven Iran-Contra
channels. Even if the DOJ had disclosed in 1987 to Pollard just how under-investigated and unprosecuted white glove Israeli espionage was in the US, it is unlikely that Pollard’s sentence would have been much different. But fortunately Pollard’s second major clemency gambit has the growing potential — like his first — to convince Americans that many more Israeli spies should be keeping Pollard’s company behind bars.